EXCLUSIVE: DHS Refuses to Release Email Justifying Warrantless Entry by ICE

I sued to obtain the General Counsel Memo justifying ICE entering homes without judicial warrants. Turns out it’s not a memo at all - it’s an email - and they’ve wrongly redacted it.

On January 21st of this year, the Associated Press broke the news that a whistleblower at the Department of Homeland Security had a memo written by Todd Lyons instructing agents to enter homes without a judicial warrant. It said: "Although the U.S. Department of Homeland Security (DHS) has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of the General Counsel has recently determined that the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose.”

The same day, I filed a Freedom of Information Act request for all Office of General Counsel (OGC) records describing or memorializing this ‘determination’ by the Department of Homeland Security OGC. We argued that since the OGC “determination” “has been officially adopted by DHS and ICE as working law”, that any otherwise applicable privilege has accordingly been waived.

Agencies aren’t allowed to keep secret legal opinions they expressly adopt.

By March 29th, DHS hadn’t acknowledged my request, so my lawyer Kel McClanahan at National Security Counselors filed a lawsuit in federal court on behalf of my podcast network. The case was assigned to Judge Christopher Cooper, an Obama appointee.

Today, we got a response from the Department of Homeland Security, and it turns out there’s no Office of General Counsel memo underpinning the Todd Lyons memo. It was an email written by Adam Loiacono, the Deputy Principal Legal Advisor for Enforcement and Litigation in the Office of the Principal Legal Advisor at ICE.

Adam Loiacono is the same lawyer that wrote the opinion (via email) legally justifying the questioning of unaccompanied minors at HHS facilities without Miranda warnings.

I’m not sure if he writes these as emails to avoid having to release them, but that shouldn’t matter, because any policy adopted as working law waives the privilege they claim justifies the redactions you’ll see below. Our next status update is due to Judge Cooper October 13th.

Here is the cover letter DHS sent:

And here is the email chain between Adam Loiacono and Joseph Mazzara. You’ll notice they misspelled DELIBERATIVE:

Thanks for reading! I’ll keep you posted about what happens next.

~AG